Cohen v. New York, Ontario & Western Railway Co.

Headnote

Cohen v. N. Y., Ontario & Western Ry Co., 187 App. Div. 934 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 17, 1919, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. The intestate was killed by one of defendant’s trains while crossing its tracks in the village of Mountaindale. The act of negligence charged in the complaint is, “ that said accident and collision was due to the negligence, carelessness and recklessness of the defendant, its agents, employees and flagman in arresting the movement of the plaintiff’s intestate while attempting to cross said tracks, and in propelling or pushing him forward so that he fell in front of an oncoming train.” The defendant denied that its employees interfered with the passage of the plaintiff’s intestate, and asserted that the accident was the ordinary crossing collision between a careless pedestrian who needlessly took chances and who was struck by the approaching train-, which the intestate not only could, but did see, in time to have avoided the colhsion in the exercise of ordinary care.